John McMullen investigates the differing interpretations of collective bargaining
Under the European Union Acquired Rights Directive (2001/23), upon a transfer of an undertaking, all of the transferors’ rights and obligations arising from a contract of employment or from an employment relationship are transferred to the transferee (Art 3(1)). Furthermore, following the transfer, the transferee is obliged to continue to observe terms and conditions agreed in any collective agreement until the date of termination or expiry of the agreement or the entering into force or application of another collective agreement (Art 3(3)).
These provisions are transposed in the UK by the Transfer of Undertakings (Protection of Employment) (TUPE) Regulations 2006 (SI 2006/246). Regulation 4 of TUPE 2006 (formerly reg 5 of TUPE 1981) provides for the transfer of the employment contract. Regulation 5 of TUPE 2006 (formerly reg 6 of TUPE 1981) provides for the transfer of collective agreements. However, that is without prejudice to the position in UK law that collective agreements are presumed to be unenforceable. But in the UK, terms from a collective agreement may acquire legal enforceability by their incorporation into the individual
